THE 2002 ELECTIONS: JUDICIAL NOMINEES

THE 2002 ELECTIONS: JUDICIAL NOMINEES; Stalled Nominations to the Bench Suddenly Get a New Life

By NEIL A. LEWIS

Published: November 7, 2002

For President Bush and Senate Republicans, the most concrete satisfaction in winning control of the Senate may come in early confirmation of several candidates for the federal bench whose nominations were blocked or defeated by Democrats who said they were too conservative.

Democrats and Republicans agreed yesterday that many of the nominees who had seemed unlikely ever to be confirmed might now safely be fitted for black robes.

Senator Trent Lott, the Mississippi Republican who will again become majority leader, said the Republican gains should be seen in part as an endorsement of Bush nominees, whom Mr. Lott described as ''strong on law and order.''

In the short term, Republican Senate aides said, the party's victories mean that the handful of appeals court nominees whose confirmation has been held up in the Judiciary Committee will receive swift consideration and approval.

They include Miguel Estrada, a Washington lawyer nominated to the United States Court of Appeals for the District of Columbia Circuit, and Michael C. McConnell, a University of Utah law professor nominated to the 10th Circuit court, in Denver.

Both are staunch conservatives whose hearings in the Democratic-controlled Judiciary Committee were contentious. Other appeals court nominees will now receive swift hearings of their own, and votes, early next year, Republicans said.

In a more defiant spirit, White House and Senate aides said they even expected Mr. Bush to renominate two candidates whom the committee defeated outright: Charles W. Pickering Sr. of Mississippi and Priscilla R. Owen of Texas, both rejected as nominees to appeals courts.

''I don't see why not,'' a senior Republican aide said. ''We didn't have the votes before. We do now.''

In the longer term, Mr. Bush should have more freedom to choose conservative nominees to fill any increasingly likely Supreme Court vacancies in the next two years. The president has said he would seek to choose someone in the mold of two of the most conservative justices, Antonin Scalia and Clarence Thomas. Mr. Estrada, whose Hispanic heritage has been a major element of the White House's promotion of his appeals court nomination, is a strong candidate to become the nation's first Hispanic justice.

While Democrats and Republicans alike talked yesterday of a need for bipartisan cooperation, the shift in Senate control follows nearly two years of harsh conflict between them over the kind of nominees Mr. Bush has proposed for the bench.

Prof. Michael Gerhardt of the William and Mary School of Law, an authority on judicial nominations, said Republicans who were infuriated by the Democrats' use of their slim majority to block Bush nominees would not hesitate now to push their candidates through.

''There will be a lot of payback going on,'' Professor Gerhardt said. ''Suddenly the situation has changed from one in which the Republicans felt the process was one of obstruction to one where they and President Bush have a clear field.''

One Democratic member of the Judiciary Committee, Senator Edward M. Kennedy of Massachusetts, said Democrats would continue to oppose any candidates they regarded as extreme conservatives -- even, he added, to the point of filibustering.

''If the president is going to move to the edge of the extreme right, there will be resistance,'' Mr. Kennedy said. ''He may be successful with some, and we may be successful in blocking others. We'll see.''

Ending a filibuster takes 60 votes, and despite their gains on Tuesday, Republicans could not cut off such a debate without help from Democrats.

But a filibuster is considered an extreme tactic. Democrats did not use it even during one of the most contentious Senate battles in modern history, involving the first President Bush's nomination of Clarence Thomas in 1991. Republicans and Southern Democrats did filibuster in 1968, however, when they blocked President Lyndon B. Johnson's effort to elevate Justice Abe Fortas to chief justice.

Photo: Republican control of the Senate is likely to mean swift confirmation of Miguel Estrada, bottom row center, and Michael C. McConnell, second from left in top row, to federal judgeships. President Bush's nomination of both, shown in this 2001 picture of appeals nominees, has been held up in committee. (Agence France-Presse)